21 July 2015,
It is with astonishment and perplexity that we read the resolution of the National Bar Council on the proposed law on the duty of care of parent companies and main contractors adopted unanimously by the General Assembly of the NBC on 29 and 30 May 2015.
This resolution recalls the Council’s commitment to United Nations guidelines that rightly requires states to translate into their national laws those principles and makes every effort to facilitate access to justice, including for victims of multinational impacts.
The bill passed on 30 March at the National Assembly is aimed precisely at addressing this need by creating a duty of prevention only for very large groups (those with more than 5,000 employees in France and 10,000 worldwide), comprising about 150 French companies.
The NBC believes that “the text of the proposal does not meet the stated objective of a better protection of human rights and the environment by companies in respect of a fair correlation between the economic power of multinationals and their legal responsibilities.” This is a political, even ideological, statement which is clearly positioned on the side of employers’ organizations and disregards the requirements of justice, which is that of the victims of the negative externalities of multinationals worldwide.
The motivation in support of this statement seem questionable, since we should be proud that France is a pioneer state in the implementation of binding standards without which, as you know, flagrant denials of justice persist, with sometimes massive consequences.
Moreover, any legal progress is a source of distortion and the world has never known, and will never know, any harmonization which would be shared and have immediate across different legislations. Waiting for that to occur implies assuming giving up on any progress on the legal front, even though everyone admits the inadequate, not to say ambiguous, view of individual ethical unilateral commitments made by large companies.
The statement also disregards the reality of companies that have spontaneously and voluntarily made such commitments concerning the implementation of a duty of care and safety, or wish to do so, and consider that it is through implementing these that they will gain additional competitive advantages. In this regard, you can read the statement of the Bolloré group as a reference document that calls for the “Requirements of a new law” and which states that “in recent decades, increasingly high expectations have been expressed for increased corporate responsibility and respect for human rights and the environment. International initiatives on corporate responsibility and duty of care that are voluntary today could be strengthened by the adoption of national legislation. Moving from the concept of due diligence to that of duty of care, the bill would require companies to prove that they had taken the necessary measures that were reasonably in their power to prevent the occurrence of damage.”
Moreover, you are aware that similar movements are under way in different countries and that the European Union awaits national initiatives before committing itself; France would be honoured to be a pioneer, in accordance with its tradition of human rights. Remember too that this bill is one of the commitments made by the current President of the Republic.
Finally be aware that various members of the French parliament, including Danielle Auroi, have already launched a Green Card initiative at the European Parliament.
It is therefore unfortunate to seem to oppose the regulation of globalisation whose negative effects are obviously not unrecognised by you when the bankruptcy of self-regulation is recognized by all. The National Council of Bar Associations is the mouthpiece of individual businesses, arguably representing the interests of a few large groups, but at the same time forgetting the communities of victims and the companies concerned about the impact of their activities.
William Bourdon, President of Sherpa
Sandra Cossart, Head of the Globalisation and Human Rights ProgrammeLast modified: 17 December 2019